Tough choice on settlement for 9/11 workers

Workers face a difficult decision in the $657 million settlement offer

Associated Press

NEW YORK — In the years after the 9/11 terror attacks, 10,000 people who helped clear mountains of debris from Lower Manhattan filed lawsuits blaming New York City for failing to protect them from the toxic dust.

Now, plaintiffs like firefighter Martin Fullam face a tight deadline to answer a big question: Do they sign a settlement and take a small share of a pot that could reach $657 million, or reject the offer and hope for something better?

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It may be difficult decision. The deal announced this week would pay some workers with mild health problems as little as $3,250, although it would spare them of having to convince a jury that their illnesses were caused by World Trade Center ash.

For the more seriously sick, payments would be higher - possibly over $1 million - but it will still mean putting a price tag on poor health.

"This is something that affects the rest of my life. I'll never work again. It has taken years off my life," said Fullam, a lieutenant who was diagnosed with polymyositis and pulmonary fibrosis and needed a lung transplant after putting in long hours at ground zero.

"I feel there is a certain value in there," said the 53-year-old, who takes a battery of medications and was back in the hospital last week for a heart problem. "It's not about getting a lot of money and moving to Florida and buying a boat."

The deal announced late Thursday is contingent on getting 95 percent of the 10,000 plaintiffs to sign the settlement - a high figure, but one lawyers on both sides of the deal said they are confident they will meet.

Workers must make their choice fast. They have been given just 90 days to accept or decline.

Most will make the choice before they know for sure how much money, if any, they stand to collect.

Payouts will be set based on a complicated formula that factors in the seriousness of each person's illness, as well as their age, previous health history and level of exposure to trade center ash.

Lawyers representing the bulk of the workers said they would work hard to get them an estimate on their individual payment before the deadline.

David Worby, one of the lawyers who led the case for the plaintiffs, said the average police officer who was forced to retire because of modest asthma and reduced lung function might be in line to get anywhere between $50,000 and $300,000, depending on the severity of their illness.

Another lead attorney for the firm that negotiated the settlement said most of the feedback from clients so far has been good.

"By far, the calls are running very positive. The clients are quite relieved that an end is in sight," said Marc Bern, a senior partner with the law firm Worby, Groner, Edelman & Napoli, Bern LLP.

A representative of one victims' group, however, expressed reservations that the deal doesn't contain enough cash.

"From what I've seen, I don't think you're going to get 95 percent of the people to opt in," said John Feal of the Long Island-based FealGood Foundation. He noted that some workers could wind up getting only a few thousand dollars for illnesses that will bother them for life.

"This is far from fair," he said. "Look, if you've got cancer and are going through chemo and medical bills, $1 million goes pretty fast."

Only $575 million of the settlement is guaranteed, although that figure could rise if more than 95 percent of the plaintiffs sign on. Any award they get could be depleted by a third or more once the plaintiffs' lawyers take their cut.

Workers who settle also take a risk that the federal government won't someday reopen the fund that previously paid out billions of dollars to the families of people killed in the 9/11 terror attacks.

One bill now pending in Congress, which could potentially offer richer payouts, bars participation by people who have previously sued to get compensation.

U.S. District Judge Alvin Hellerstein, who must approve the settlement, said at a hearing Friday that he needed time to ensure the deal is "fair, appropriate and just to all affected."

He said he was hopeful it would guarantee that the most seriously ill people will be getting the most money, while establishing a process aimed at rooting out unsubstantiated claims.

"This will not be a giveaway," he said.

That was welcome news to some plaintiffs, including James Nolan, a construction worker who sued after developing respiratory problems he believes are linked to his time at ground zero.

"You gotta weed out all these people who are saying they're sick and they're not, you know, and I'm glad they're going to start doing this," he said.

Hellerstein said he would hold another hearing March 19 to let people weigh in on the settlement.

The deal sets out an ambitious schedule for evaluating and paying claims.

Some payments would be made almost immediately and final payments would be due in just one year. Over the coming months, workers who opt in will have their claims evaluated by an independent monitor.

While both sides said publicly that any settlement would have to be transparent to the public, especially with so many tax dollars at stake, some parts of the deal are rooted in secrecy. Workers who opt in would be barred from speaking to the news media about how much money they ultimately receive.

The settlement was announced Thursday night after two years of tough negotiations between lawyers for the plaintiffs and the WTC Captive Insurance Co., an entity set up by Congress to help the city deal with the mountain of legal action related to the trade center cleanup.

Most of the settlement will be funded out of a $1 billion grant from the Federal Emergency Management Agency.

The WTC Captive spent more than $200 million on legal fees in the years before the settlement, but said that almost all of those costs were covered by other insurers. Lawyers for the entity said it would still have $500 million left after the settlement to deal with unresolved legal claims.

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